Nguyen Duc Dung v Torture Claims Appeal Board/

HCAL 165/2024

[2026] HKCFI 4026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 165 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge Andrew Li:

1.  The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board (“the Board”) as the putative respondent and the Director of Immigration (“the Director”) as the putative interested party; and

2.  Leave to apply for judicial review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the decision dated 20 December 2023 of the Board (“the Board’s Decision”).

2.The applicant did not ask for a hearing and this application is to be dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Form 86 is amended to the effect that the Board becomes the only putative respondent and the Director becomes the putative interested party.

The applicant

4.The applicant is a national of Vietnam. He was an illegal immigrant for the reason that he sneaked into Hong Kong by speedboat on 2 April 2020. He was arrested by the police on the same day. He lodged a non-refoulement claim later on the basis that, if he is refouled, he will be harmed or killed by his creditors.

5.Details of his claim are set out in the Board’s Decision. See hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000165_2024_files/the_Board's_Decision.pdf

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(4)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Notice of Decision dated 18 January 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 July 2023, the Board conducted an oral hearing for him. He had given evidence and answered the Board’s questions at the hearing.

9.Having considered the evidence, the Board made the findings below.

(1)  The Board found the evidence given by the applicant as contradictory and not credible. The Board found the applicant not an honest witness. It refused to accept the applicant’s evidence that he had borrowed loans from the creditors. [37]

(2)  The Board also assessed that the risk of harm to the applicant was low and there was no credible evidence to support his allegation that he would be harmed or killed by his creditors. [46 – 58]

(3)  The Board considered that internal relocation is also viable in the applicant’s case. [44-45]

10.For the above reasons, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant filed the Form 86 dated 16 January 2024 for leave to apply for judicial review of the Board’s Decision.

12.The only “ground” raised by the applicant in the affirmation filed in support of the application is that if he were to be refouled to Vietnam, he will face “genuine and substantial risk of being subject to torture or even killed” by his creditor and his men since he is “insolvent”.

DISCUSSION

13.The role of this court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.In my judgment, the applicant’s “ground” stated in his affirmation filed in support of the leave application is not valid to challenge the Board’s Decision. It merely repeated the gist of the grounds of his appeal before the Board. It did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision.

17.In the circumstances, I find the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated 23 July 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1